United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge.
matter is before the Court on DEFENDANT FLEMING'S MOTION
IN LIMINE (ECF No. 97). For the reasons set forth below, this
motion will be denied.
is one of six defendants named in a seven-count Indictment
filed on March 8, 2017. ECF No. 3 (Under Seal). She was
charged in three counts: Count One, Conspiracy to Commit Wire
Fraud, id. ¶ 181; Count Five, Use of Fire to
Commit a Federal Felony, id. ¶ 191; and Count
Six, False Statement, id. ¶ 194. Specifically,
the United States alleged that:
• Defendant and Verdon Taylor purchased a 2002 Dodge
Stratus in December 2007, and it was damaged by a fire on or
around September 4, 2008. Defendant then filed an insurance
claim on the car. Id. ¶¶ 67-70. Defendant
also falsely stated to special agents of the Bureau of
Alcohol, Tobacco, Firearms, and Explosives that she was alone
in the car at the time of the fire, when in fact a man was in
the car with her then. Id. ¶ 194;
• Investigators found a receipt for a prepaid cellular
phone in Defendant's name in a Dodge Caravan in the
backyard of 6403 Dan Street-a rental property occupied by
co-defendant Sylvia Mitchell-following a fire there on or
around December 12, 2008. Id. ¶ 91(e); and
• Defendant was the tenant of a rental property at 3007
Q Street, which was damaged by a fire on or around February
28, 2009. Defendant then filed an insurance claim on the
property. Id. ¶¶ 94-97.
addition, although not alleged in the Indictment, the United
States has evidence indicating that: Defendant purchased a
mobile home at 20291 Boydton Plank Road in McKenney, Virginia
in November 2013; the home was destroyed by fire on May 5,
2014; and Defendant then filed an insurance claim on the
property. See Mot. at 2; Gov't Response (ECF No.
101) at 2.
now moves to exclude at trial evidence relating to these
must be relevant to be admissible. See Fed.R.Evid.
402. Evidence is relevant if "it has any tendency to
make a fact more or less probable than it would be without
the evidence, " and "the fact is of consequence in
determining the action." Id. 401. This standard
is a "low barrier to admissibility"; to satisfy it,
"evidence need only be 'worth consideration by the
jury, ' or have a 'plus value.'" United
States v. Leftenant, 341 F.3d 338, 346 (4th Cir. 2003)
(quoting United States v. Queen, 132 F.3d 991, 998
(4th Cir. 1997)). If evidence is relevant, the Court can
still exclude it if "its probative value is
substantially outweighed by a danger of . . . unfair
prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative
evidence." Fed.R.Evid. 403.
addition, even if it is relevant, "[e]vidence of a
crime, wrong, or other act is not admissible to prove a
person's character in order to show that on a particular
occasion the person acted in accordance with the
character." Id. 404(b)(1). Such evidence may,
however, "be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of
accident." Id. 404(b)(2). Rule 404(b) only
pertains to "other acts extrinsic to the one
charged." United States v. Chin, 83 F.3d 83,
87-88 (4th Cir. 1996). If evidence "is admitted as to
acts intrinsic to the crime charged, and is not admitted
solely to demonstrate bad character, it is admissible."
Id. Evidence of bad acts is intrinsic if, among
other things, it involves "the same 'series of
transactions as the charged offense, '" United
States v. Otuya, 720 F.3d 183, 188 (4th Cir. 2013)
(quoting United States v. Kennedy, 32 F.3d 876, 885
(4th Cir. 1994)), or "the other acts were necessary
preliminaries to the crime charged, " Chin, 83
F.3d at 88 (internal quotations omitted).
seeks to preclude the United States from mentioning at trial,
in any form: (1) the fires involving the Dodge Stratus, the Q
Street property, and the mobile home at Boydton Plank Road;
and (2) the receipt for a prepaid cell phone in
Defendant's name found after the fire at 6403 Dan Street.
Defendant's request seems to be based on two grounds.
First, this evidence relates to fires "in which arson
cannot be proven" and is therefore irrelevant to
Defendant's conspiracy charge under Rule 402, since
"[o]bviously the insurance claims [submitted by
Defendant] were not fraudulent if the causes of the fires
were accidental, suspicious or undetermined, as opposed to
deliberate." Mot. at 3. Second, even if that evidence is
relevant, the United States will seek to admit the evidence
under Rule 404(b), and the Court should exclude it under Rule
403 because asking the jury to "infer knowledge, motive,
opportunity or intent from the mere number of fires,
[Defendant]' s association with V[e]rdon Taylor, and
ownership interest in the properties. . . . invites
speculation and improper innuendos which will result in
unfair prejudice and confusion of the issues."
Id. at 4.